# May v. Commissioner of Social Security

> District Court, M.D. Florida · August 12, 2025

URL: https://www.frixlaw.com/law-library/cases/11119359

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 12, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11119359

## How later opinions describe it (automated extraction)

- holding a claimant’s moderate limitation as to concentration, persistence, or pace must be explicitly included in the hypothetical question posed to a VE
- holding that because the hypothetical question to the VE failed to assume the existence of psychological problems, which the ALJ found to be severe, the decision was not based on substantial evidence

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

KELLY VIRGINIA MAY,

Plaintiff,

v. Case No. 8:24-CV-1322-AAS

FRANK BISIGNANO,
Commissioner of the Social
Security Administration,1

Defendant.
____________________________________/
ORDER
Plaintiff Kelly Virginia May requests judicial review of a decision by the
Commissioner of Social Security (Commissioner) denying her claim for
Disability Insurance Benefits (DIB). After reviewing the record, including the
transcript of the proceedings before the Administrative Law Judge (ALJ), the
administrative record, the pleadings, and the parties’ memoranda, the
Commissioner’s decision is REMANDED for further consideration.

1 Frank Bisignano became the Commissioner of Social Security on May 7, 2025. Under
Rule 25(d) of the Federal Rules of Civil Procedure, Mr. Bisignano should be
substituted as the defendant in this suit. No further action needs to be taken to
continue this suit through the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
I. PROCEDURAL HISTORY
Ms. May applied for DIB on February 16, 2017, with an alleged disability

onset date of December 1, 2015. (Tr. 283–84). Ms. May’s application was denied
initially and after reconsideration. (Tr. 127–29, 131–35). At Ms. May’s request,
the ALJ held a hearing. (Tr. 136–37). On August 25, 2021, the ALJ issued a
decision denying Ms. May’s request for disability benefits. (Tr. 103–20).

Ms. May timely requested review of the ALJ’s unfavorable decision, and
on December 2, 2019, the Appeals Council remanded Ms. May’s claim for
further proceedings. (Tr. 121–24). Two additional hearings were held, and on
August 30, 2021, the ALJ again issued a decision denying Ms. May’s claim for

disability benefits. (Tr. 10–28, 1289–337). Ms. May requested a review of her
benefits denial, and the Appeals Council denied review. (Tr. 1–6; 1308–13).
On February 22, 2022, Ms. May brought an action in the Middle District
of Florida. On July 11, 2022, the court granted the Commissioner’s unopposed

motion to remand, and on July 12, 2022, judgment was entered in Ms. May’s
favor. (Tr. 1314–17). On remand, the ALJ denied Ms. May’s disability claim
without a hearing. (Tr. 1325–44). Ms. May appealed the ALJ’s disability
benefits denial to the Appeals Council, which remanded Ms. May’s claim for

further proceedings. (Tr. 1345–50).
The ALJ held a hearing on October 24, 2023. (Tr. 1235–84). On February
16, 2024, the ALJ issued another decision denying Ms. May’s claim for DIB
benefits. (Tr. 1211–34). Ms. May now requests judicial review of the
Commissioner’s February 16, 2024 decision. (Doc. 1).

II. NATURE OF DISABILITY CLAIM
A. Background
Ms. May’s insured status expired on December 31, 2016. (Tr. 291, 1239).
At that time, she was 38 years old. (Tr. 283). Ms. May has a high school

education and past relevant work experience as a paramedic. (Tr. 1224). Ms.
May alleges disability due to anxiety, depression, and migraines. (Tr. 324).
B. Summary of the Decision
The ALJ must follow five steps when evaluating a disability claim.2 20

C.F.R. § 404.1572(a). First, if a claimant is engaged in substantial gainful
activity,3 she is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant has
no impairment or combination of impairments significantly limiting her
physical or mental ability to perform basic work activities, she has no severe

impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant’s
impairments fail to meet or equal an impairment in the Listings, she is not
disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant’s impairments do not

2 If the ALJ determines the claimant is disabled at any step of the sequential analysis,
the analysis ends. 20 C.F.R. § 404.1520(a)(4).

3 Substantial gainful activity is paid work that requires significant physical or mental
activity. 20 C.F.R. § 404.1572.
prevent her from performing her past relevant work, she is not disabled. 20
C.F.R. § 404.1520(e). At this fourth step, the ALJ determines the claimant’s

residual functional capacity (RFC). 20 C.F.R. § 404.1520(e). Fifth, if a
claimant’s impairments (considering her RFC, age, education, and past work
experience) do not prevent her from performing work that exists in the national
economy, she is not disabled. 20 C.F.R. § 404.1520(g).

The ALJ determined Ms. May had not engaged in substantial gainful
activity from her alleged onset date of December 1, 2015, through her date last
insured of December 31, 2016. (Tr. 1217). The ALJ found Ms. May has these
severe impairments: unspecified anxiety disorder, borderline personality

disorder, and alcohol use disorder. (Id.). However, the ALJ concluded Ms.
May’s impairment or combination of impairments failed to meet or medically
equal the severity of an impairment in the Listings. (Tr. 1218).
The ALJ found Ms. May had the RFC to perform a full range of work at

all exertional levels, but with the following non-exertional limitations:
[Ms. May] is limited to simple, routine, repetitive tasks and only
occasionally interacts with the general public, co-workers, and
supervisors.

(Tr. 1220). Based on these findings and the vocational expert’s (VE) testimony,
the ALJ determined Ms. May could not perform her past relevant work. (Tr.
1224). However, the ALJ concluded Ms. May could perform other work. (Tr.
1225). Specifically, Ms. May can perform the jobs of hand packager, laundry
worker, and cleaner. (Id.). Thus, the ALJ found Ms. May was not disabled from
December 1, 2015,4 the alleged onset date, through December 31, 2016, the

date last insured. (Tr. 1226).
III. ANALYSIS
A. Standard of Review
Review of the ALJ’s decision is limited to reviewing whether the ALJ

applied correct legal standards and whether substantial evidence supports his
findings. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988);
Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct. 1420, 28 L. Ed. 2d 842
(1971). Substantial evidence is more than a mere scintilla but less than a

preponderance. Dale v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)
(citation omitted). In other words, there must be sufficient evidence for a
reasonable person to accept as enough to support the conclusion. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citations omitted). The Supreme

Court recently explained, “whatever the meaning of ‘substantial’ in other
contexts, the threshold for such evidentiary sufficiency is not high.” Biestek v.
Berryhill, 139 S. Ct. 1148 (2019).

4 Ms. May amended her alleged onset date to March 28, 2015, but the ALJ did not
address this amendment. (Tr. 1613). Thus, the period at issue is from the amended
onset date of March 28, 2015, through the date last insured of December 31, 2016.
A reviewing court must affirm a decision supported by substantial
evidence “even if the proof preponderates against it.” Phillips v. Barnhart, 357

F.3d 1232, 1240 n.8 (11th Cir. 2004) (citations omitted). The court must not
make new factual determinations, reweigh evidence, or substitute its judgment
for the Commissioner’s decision. Id. at 1240 (citation omitted). Instead, the
court must view the whole record, considering evidence favorable and

unfavorable to the Commissioner’s decision. Foote, 67 F.3d at 1560; see also
Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (citation omitted)
(stating that the reviewing court must scrutinize the entire record to determine
the reasonableness of the Commissioner’s factual determinations).

B. Issues on Appeal
Ms. May raises these issues on appeal: (1) whether the ALJ’s RFC
assessment properly accounted for Ms. May’s mental limitations; (2) whether
the ALJ properly considered the evidence from the Department of Veterans

Affairs (VA); and (3) whether the ALJ properly weighed the opinion evidence.
1. Whether the ALJ’s RFC assessment properly accounted
for Ms. May’s mental limitations.

Ms. May argues the ALJ’s RFC and hypothetical are deficient because
they failed to incorporate her mental limitations. (Doc. 20, pp. 5–12; Doc. 26,
pp. 1–4). Specifically, Ms. May alleges the ALJ failed to account for her
moderate limitations in her “ability to concentrate, persist, or maintain pace”
and “adapt or manage [her]self.” (Id.). In response, the Commissioner contends
the ALJ’s evaluation of Ms. May’s mental limitations is supported by the record

evidence and applicable law. (Doc. 25, pp. 6–8).
For the testimony of a VE “to constitute substantial evidence, the ALJ
must pose a hypothetical question which comprises all of the claimant’s
impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002); Jones

v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). The hypothetical question to the
VE must also comprehensively describe the claimant’s impairments. Pendley
v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985) (holding that because the
hypothetical question to the VE failed to assume the existence of psychological

problems, which the ALJ found to be severe, the decision was not based on
substantial evidence). The ALJ must also provide a function-by-function
assessment of Ms. May’s nonexertional capacity regarding work-related
functions. Brunson v. Astrue, 850 F. Supp. 2d 1293, 1302-03 (M.D. Fla. 2011)

(holding the ALJ’s decision failed to “address the impact of Plaintiff’s moderate
limitations in concentration, persistence, or pace on his ability to ‘understand,
carry out, and remember instructions; use judgment in making work-related
decisions; respond appropriately to supervision, co-workers and work

situations; and deal with changes in a routine work setting.’”).
The ALJ’s hypothetical to the VE did not include or comprehensively
describe all of Ms. May’s mental limitations. The ALJ found Ms. May’s mental

impairments cause moderate limitations in three of the four broad areas of
mental functioning—interacting with others; maintaining concentration,
persistence, or pace; and adapting or managing oneself. The limitation to
occasional interaction with the general public, coworkers, and supervisors

addresses Ms. May’s limitations in interacting with others. (Tr. 1218–19). The
RFC limitation to simple, routine, repetitive tasks addresses Ms. May’s
limitations in understanding, remembering, or applying information, which
the ALJ found Ms. May has a mild limitation. (Tr. 1218). However, the RFC

and hypothetical questions posed to the VE include no restrictions accounting
for Ms. May’s moderate limitation in her ability to concentrate, persist, or
maintain pace, and her ability to adapt or manage herself. See Samuels v.
Acting Comm’r of Soc. Sec., 959 F.3d 1047 (11th Cir. 2020) (holding the ALJ

did not account for the claimant’s difficulties with completing a normal
workweek because including restrictions to simple work and occasional public
interaction did not encompass the claimant’s limitations stemming from
bipolar disorder); Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180-81 (11th

Cir. 2011) (holding a claimant’s moderate limitation as to concentration,
persistence, or pace must be explicitly included in the hypothetical question
posed to a VE).
Similar to this action, in Nuno v. Astrue, No. 6:06-CV-1906-ORL-KRS,
2008 WL 725603 (M.D. Fla. Mar. 17, 2008), the court held the ALJ erred in

failing to include limitations arising from the claimant’s mental impairment in
the hypothetical question posed to the VE. Id. at *4. Specifically, the court
stated the hypothetical question was inadequate because it did not include the
limitations arising from the claimant’s mental impairment. Id. (citing Pendley

v. Heckler, 767 F.2d 1561 (11th Cir. 1985)). The court also noted that including
such a limitation may “begin seriously to erode the occupational base of the
jobs [the VE] identified as ones the hypothetical claimant could perform.” Id.
The ALJ found Ms. May had moderate limitations in maintaining

concentration, persistence, and pace, and in her ability to adapt or manage
herself due to her mental impairments. However, the ALJ did not account for
these limitations in the hypothetical question posed to the VE or the RFC
assessment. This failure requires remand.

2. Whether the ALJ properly considered the evidence from
the VA.
Ms. May argues the ALJ erred in failing to properly consider her VA
disability rating of 100%. (Doc. 20, pp. 12–17, Doc. 26, pp. 4–5). In response,
the Commissioner contends the ALJ adequately considered Ms. May’s VA
disability rating and accorded it proper weight in accordance with the
applicable statutory guidelines. (Doc. 25, pp. 8–9).
As provided at 20 C.F.R. § 404.1504 and further explained in Social
Security Ruling (SSR) 06-03p, “a determination made by another agency that

[the claimant is] disabled . . . is not binding on” the Social Security
Administration (SSA). SSR 06-03p, 2006 WL 2329939, at *6.2 Rather, “the
ultimate responsibility for determining whether an individual is disabled
under Social Security law rests with the Commissioner.” Id. at *7.

Nevertheless, the SSA must “evaluate all the evidence in the case record that
may have a bearing on [its] determination or decision of disability, including
decisions by other governmental and nongovernmental agencies . . . Therefore,
evidence of a disability decision by another governmental or nongovernmental

agency cannot be ignored and must be considered.” Id. at *6.
The Eleventh Circuit clarified how these principles interact in Noble v.
Comm’r of Soc. Sec., 963 F.3d 1317 (11th Cir. 2020), stating that “an ALJ must
discuss a decision from another [agency] finding the claimant disabled but may

refuse to follow the other agency’s decision when the record contains more
recent medical evidence supporting a conclusion that the claimant is not
disabled.” Id. at 1329. A reviewing court must:
consider two questions in deciding whether an ALJ who declined
to follow another agency’s decision that a claimant was disabled
nevertheless properly considered that decision. First, the court
must ask whether the ALJ’s decision shows that she considered
the other agency's decision. See DePaepe [v. Richardson,] 464 F.2d
[92,] 101[ (5th Cir. 1972)].5 If the ALJ’s decision does not discuss
the other agency’s decision, the case must be remanded to the
Commissioner for consideration of the other agency's decision. But
if the ALJ discussed the other agency’s decision, the court moves
on to the second step of the analysis: whether substantial evidence
in the record supports the ALJ’s decision to depart from the other
agency’s decision. See Skeels[ v. Richardson,] 453 F.2d [882,] 883[
(5th Cir. 1972)]. If there is substantial evidence in the record, then
the ALJ’s decision should be affirmed. Id.

Noble, 963 F.3d at 1330.
Before Noble, the Eleventh Circuit stated that an ALJ must not only
“seriously consider and closely scrutinize the VA’s disability determination,”
but also “give specific reasons if the ALJ discounts that determination.” Brown-
Gaudet-Evans v. Comm’r of Soc. Sec., 673 F. App’x 902, 904 (11th Cir. 2016)
(citing Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir. 1981)). “If either the
ALJ did not consider the other agency’s decision or there is not substantial
evidence in the record to support the ALJ's decision to depart from the other
agency's decision, then the reviewing court must remand the case to the
Commissioner.” Blake v. Comm’r of Soc. Sec., No. 6:19-CV-2101-ORL-18DCI,
2020 WL 4905392, at *3 (M.D. Fla. July 23, 2020).
The ALJ cannot rely solely on differences between the VA and SSA
disability determination standards to reject a VA disability rating. See Mills v.

5 The Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions
decided prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
Berryhill, 824 F. App’x 894, 899 (11th Cir. 2020) (holding the ALJ did not err
when he “discussed the V.A. disability determination in detail, including how

the V.A.’s disability process is different from that of the SSA's and how [the
claimant's] capabilities were not consistent with the V.A.’s disability rating”);
Trimble v. Saul, No. 6:19-CV-1074-ORL-JRK, 2020 WL 4746184, at *4 (M.D.
Fla. Aug. 17, 2020) (holding an ALJ’s recognition that the difference between

VA and SSA standards, “in and of itself, may not be enough under Brown-
Gaudet-Evans” to warrant rejecting a VA rating); Daniels v. Berryhill, No.
3:16-cv-412-WC, 2017 WL 2177336, at *4–7 (M.D. Ala. May 17, 2017) (holding
the ALJ failed to meaningfully analyze a VA disability rating by merely citing

differences in the VA’s and SSA’s evaluation processes). “Generalized
dismissals of agency determinations are insufficient to demonstrate that the
ALJ ‘seriously considered [the] VA disability rating.’” Butters v. Berryhill, No.
6:18-cv-00472-AKK, 2019 WL 3429243, at *5 (N.D. Ala. July 30, 2019) (quoting

Brown-Gaudet-Evans, 674 F. App’x at 904).
The ALJ gave Ms. May’s 100% VA disability rating little weight.6 (Tr.
1223). In doing so, the ALJ explained the differences between VA and SSA

6 In reviewing and considering Ms. May’s disability rating, the ALJ relied on a newer
version of this regulation that sets forth analysis and articulation requirements in
effect for claims filed on or after March 27, 2017. (Tr. 1223). Ms. May filed her
application for DIB on February 16, 2017, before this regulation became effective. (Tr.
283–84). Thus, prior cases interpreting this regulation are applicable. See Isbell v.
Soc. Sec. Admin., Comm’r, No. 22-10938, 2023 WL 2606614 (11th Cir. Mar. 23, 2023).
disability standards. Id. Although the ALJ stated he considered the underlying
evidence from the VA, he did not discuss the evidence. (Tr. 1223–24). For

example, Ms. May was determined to have total occupational and social
impairment. (Tr. 832). Ms. May had symptoms of depressed mood, anxiety,
panic attacks more than once per week, chronic sleep impairment, mild
memory loss, disturbances of motivation and mood, difficulty in establishing

and maintaining effective work and social relationships, and difficulty in
adapting to stressful circumstances, including work or a worklike setting. (Tr.
846).
The ALJ failed to demonstrate that he considered Ms. May’s VA

disability rating with sufficient scrutiny. This failure warrants a remand. See
Butters, 2019 WL 3429243, at *5 (holding remand was warranted where the
ALJ concluded the VA disability rating did not bind his decision merely
because the SSA employs different disability determination standards);

Dunham v. Colvin, No. 2:15-cv-622-GMB, 2017 WL 253979, at *2–4 (M.D. Ala.
Jan. 19, 2017) (remand warranted where the ALJ accorded the VA disability
determination little weight solely because the VA’s and SSA’s disability
criteria differ).

3. Remaining Issue
Because this case is remanded for further consideration, the court need
not consider Ms. May’s remaining argument raised on appeal regarding the
opinion evidence. See Demenech v. Sec’y of Dep’t of Health & Hum. Servs., 913
F.2d 882, 884 (11th Cir. 1990) (per curiam) (declining to address the claimant’s
remaining arguments based on the conclusions reached in remanding the
case); Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam)
(stating that where remand is required, it may be unnecessary to review other
claims raised) (citations omitted).
IV. CONCLUSION
For the reasons stated, the Commissioner’s decision is REMANDED,
and the Clerk of Court is directed to enter judgment for Ms. May and close the

case.
ORDERED in Tampa, Florida, on August 12, 2025.
Aranda. Ayre Ah Sanne
AMANDA ARNOLD SANSONE □
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11119359. Public record. Not legal advice.